TikTok – Ban Or Not To Ban, That Is The Question

TikTok and multiple other apps with ties to ByteDance went dark on Sunday, January 19, 2025, after the United States Supreme Court declined to stay the effective date of the legislation banning the application.

In a rare opinion joined by all of the Justices, on Friday the Supreme Court stated,

It is not clear that the Act itself directly regulates protected expressive activity, or conduct with an expressive component. Indeed, the Act does not regulate the creator petitioners at all. And it directly regulates ByteDance Ltd. and TikTok Inc. only through the divestiture requirement. See §2(c)(1).

. . . a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny. . .

The challenged provisions are facially content neutral. They impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States. . .

While we find that differential treatment was justified here, however, we emphasize the inherent narrowness of our holding. Data collection and analysis is a common practice in this digital age. But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns. . .

For the foregoing reasons, we conclude that the challenged provisions do not violate petitioners’ First Amendment rights.

As noted in my blog titled, TikTok Denied a Stay of the Ban Pending Appeal, a 2024 law signed by President Biden was enacted due to national security concerns out of a fear that Chinese authorities could compel ByteDance to share American user data or manipulate content on the platform. Trump supported a TikTok ban during his first term, signing executive orders in 2019 and 2020 supporting a ban.

Sunday morning, Trump posted on Truth Social,

I’m asking companies not to let TikTok stay dark! I will issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security.

Trump also signaled he would not hold any hosting platform liable for the service restoration in violation of the legislation. TikTok service has since been restored. However, presently new users cannot download the app.

While the legislation allows for a 90-day extension were ByteDance to make substantial progress towards consummating a sale of its U.S. operations, it does not appear that such progress has been made and that ByteDance instead focused its efforts on challenging the legality of the law.

Under the legislation, ByteDance’s only avenue of avoiding a ban is to divest itself of its U.S. operations. Merely addressing national security concerns through changes to the platform would not enable TikTok to avoid the ban.

President Trump has since stated that he perceives a qualified divestiture by ByteDance to be a joint venture by which the United States owns 50% of the U.S. operations. ByteDance has not indicated that it is prepared to sell.

On Monday evening, as part of his first day executive orders, Trump signed an order delaying the ban for 75 days to allow ByteDance to find a U.S. buyer.

Questions have arisen about whether President Trump has the authority to suspend a law that has already become effective. Trump’s use of an executive order to retroactively delay the ban and his waiver of liability through a social media post likely exceed his executive authority in light of the statutory language. However, his Department of Justice is unlikely to enforce any violations of the ban out of deference to the President.